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Federal Court of Australia |
Last Updated: 10 March 1998
MIGRATION - Refugee Review Tribunal - application for protection visa - whether there was evidence to justify making of decisions - whether Tribunal decision involved errors of law - whether hearing before Tribunal conducted in unfair manner - application dismissed.
Migration Act 1958, ss 420, 476(1)(a), 476(1)(e), 476(1)(g)
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, applied
Eshutu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, applied
GALINA DOLGITSKAYA v THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
SG 29 of 1996
MANSFIELD J
ADELAIDE
6 MARCH 1998
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IN THE FEDERAL COURT OF AUSTRALIA | |
| SOUTH AUSTRALIA DISTRICT REGISTRY | SG 29 of 1996 |
|
BETWEEN: | galina dolgitskaya
Applicant |
|
AND: | the minister for immigration and multicultural affairs
Respondent
|
|
JUDGE: | MANSFIELD J |
| DATE OF ORDER: | 6 March 1998 |
| WHERE MADE: | ADELAIDE |
THE COURT ORDERS THAT:
(1) Application dismissed.
(2) The applicant pay to the respondent costs of the application to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| SOUTH AUSTRALIA DISTRICT REGISTRY | SG 29 of 1996 |
|
BETWEEN: | galina dolgitskaya
Applicant |
|
AND: | the minister for immigration and multicultural affairs
Respondent |
JUDGE:
MANSFIELD J DATE: 6 March 1998 PLACE: ADELAIDE
The applicant is a national of the Russian Federation. She is from the town of Il'skij on the outskirts of Krasnodar, near Chechyna. She arrived in Australia in December 1994 on a visitor visa with her young son Antuan, who is included in the application for the protection visa which she made in January 1995. Her occupation is a philologist of French language, although she had earlier worked as a school teacher and as a deputy school principal.
Section 36(2) of the Act provides that 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 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). It is common ground on this application that the relevant provision of the Convention is Article 1 A(2) which provides that a refugee is any person who:
"... owing to 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; ..."
Before the Tribunal, the applicant claimed a well founded fear of persecution were she to return to the Russian Federation by reason of her political opinion and her membership of a social group. The applicant's principal contention before the Tribunal was that her political opinion, namely her disagreement with the Russian Federation military action in Chechnya, and her membership of a social group (conscientious objector to a particular military engagement) rendered her vulnerable to a real chance of persecution should she return to the Russian Federation. She claims a conscientious objection to military service on the grounds that the Russian Federation is carrying out `ethnic cleansing' on the people of Chechyna. Her fear is that, if she were to return to the Russian Federation, she would face compulsory recruitment into the Russian army. She is liable to conscription due to her qualifications as a nurse. She will then be confronted with the obligation to carry arms, and her son will be placed in an orphanage. If she refuses to carry arms, consistent with her limited conscientious objection, she will be imprisoned.
The second aspect of her claim was based upon her political beliefs and her social position. The applicant is from an aristocratic family, which over many years has suffered from the political system in Russia. She did not complain of particular conduct directed towards herself, but described conduct directed towards her grandparents and parents. Her awareness of her family's difficulties was not realised until she was informed of it by relatives after she had arrived in Australia. She is also concerned more generally about political oppression, especially if the Communist party returns to power. She is a poet and musician, and more recently had become more openly political in her songs. She was however unable to identify any particular acts of repression or oppression of significance directed towards her in the years leading up to her departure from the Russian Federation.
A separate claim based upon her fear of having committed a criminal offence if she has been called up for military service since she departed from the Russian Federation was rejected as a foundation for her claimed status, as that feared conduct towards her was not for a convention reason. No point was taken about that ruling before me.
She made a further discrete claim of persecution by reason of her having applied for a protection visa in Australia, and of having been granted a bridging visa in the meantime. That claim was rejected by the delegate of the Minister, and by the Tribunal. It was not raised as a ground relevant to the present review application before the Court.
The Tribunal addressed each of the applicant's claims that she may be persecuted for a Convention reason if she were to return to the Russian Federation. It rejected those claims. The Tribunal's decision on her claim that she may be persecuted by reason of being called up to serve in the Chechnyan conflict, and matters associated with the Tribunal's approach to that issue were the subject of submissions before the Court. Other than the complaint about the fairness of the proceedings before the Tribunal, which spans all grounds, there is no attempt before me to have the other specific conclusions of the Tribunal reviewed. It is therefore unnecessary to expand upon them.
It is appropriate to note in more detail the applicant's evidence relating to her fear of persecution associated with the Chechnyan conflict. Before the Tribunal the applicant described her earlier training. She did nursing training between 1981 and 1985 during her university studies in the French language. She had practical training in the army, and sat exams set by a military commission. She was awarded the rank of `middle class nursing sister', apparently equivalent to the rank of sergeant. Her joint skills in a foreign language and as a nursing sister render her vulnerable to military call up, even for combatant duties, especially as her house area is close to the Chechnyan conflict. She described her history between 1985 and 1989. From 1989, she had lived apart from her ex-husband, and from 1990 she had returned to her family home near Krasnodar and then moved elsewhere in that area. In that general area she worked as a teacher, and later as a deputy principal, until she came to Australia to visit her ageing grandmother.
The Tribunal, at the applicant's request, called the applicant's aunt also to give evidence. She was able to confirm a history of family suffering under the communist regime. She had limited contact with her family, and so her ability to provide more current information was restricted. She had had virtually no contact with her family since the 1960s. Her concerns for the applicant's safety, should the applicant return to the Russian Federation, were therefore not based upon her current knowledge of experiences of her family.
Documents submitted to the delegate for the Minister, and so to the Tribunal, included a military identity card, and an education certificate confirming that the applicant had graduated as a Civil Defence Nurse in 1985. They were part of a military passport issued to the applicant. There is an issue as to whether the full military passport was presented to the delegate of the Minister.
As the copy of the military passport which the applicant maintained on the departmental file was incomplete (it comprised only the two documents referred to above), she was asked to produce the full copy. A third page was produced. It contained stamps showing her military registration, two subsequent registration and deregistrations apparently shortly after her university graduation, and finally (in terms of chronological data) deregistration in April 1989. The applicant accepted that she had not re-registered since then. The Tribunal questioned her about why, apparently, that page of the document had not been provided to the delegate of the Minister. She was also questioned about the correctness of her claim that only persons with foreign language qualifications were given military registration documents; to some extent, she then qualified that assertion.
The Tribunal had regard to a range of other detailed material relating to the conflict in Chechnya, upon which the applicant was given the opportunity to comment. It is discussed at length in the Tribunal's reasons.
THE TRIBUNAL'S REASONS
It is necessary to refer to the Tribunal's reasons only in so far as they address the applicant's concern about persecution by reason of her political beliefs, namely her potential conscription in, and then persecution due to her conscientious objection to, the Russian Federation army serving in the Chechnyan conflict. There was no separate complaint on this review about the Tribunal's conclusions concerning the other bases for meeting the criterion for a protection visa, as asserted by the applicant.
The Tribunal identified, correctly in my view, that on this aspect the "real chance" of persecution would exist only if there were a real chance that the applicant will be forcibly conscripted or otherwise required to fight in the Chechnyan conflict. If there was no real chance of that occurring, then her conscientious objection to doing so would not need to be exercised. In turn, there would be no need to assess the risks of adverse consequences to her by reason of its exercise, or to assess whether they fell within the concept of persecution.
It said:
"Unless the applicant is able to establish that there is a real chance she will be forcibly conscripted or otherwise required to fight in the Chechen war, then her claims fails in limine. This depends on whether she comes within any category of service personnel whom the Russian military authorities regard as liable to call-up in such a conflict as this."
It then addressed the evidence. It accepted that the applicant was once on the military registry of the Russian army, and had a military registration speciality of a middle level nurse.
In the course of its reasons, the Tribunal however found that she had not earlier produced the third page of the military passport. It was very critical of the applicant's failure to do so. Its content is described above. The Tribunal concluded that it was withheld from the delegate of the Minister "for reasons which do not assist the applicant's credit". It is that criticism which founds the attack under s 476(1)(g).
The Tribunal then addressed the evidence, including but clearly not exclusively, the data in the military passport. It considered the applicant's evidence, and a range of other material identified in its reasons. It concluded that the applicant's registration with her military speciality as a nurse ceased in 1989 and was not renewed before her departure from the Russian Federation; that at no stage between the completion of her military nursing training and her departure from Russia, a period of some nine years, did she perform any military training or undertake refresher nursing courses; and that other information strongly suggests that reservists are not being called up. Thus it concluded that the applicant is not at risk of call up. All those explicit findings of fact are based on material identified by the Tribunal and are not now challenged by the applicant.
There is one other passage in the Tribunal's reasons about which the applicant complains on this aspect, namely its observation that
"The applicant herself is unable to advance her claims in this request as she does not know one way or the other whether she has been called up."
The Tribunal, having reached the conclusion that the applicant is not at risk of call up to serve in the Chechnyan conflict were she to return to the Russian Federation, then declined to explore whether the applicant genuinely holds the limited conscientious objection to that conflict which she asserted. It regarded it as unnecessary to do so.
THE GROUNDS OF REVIEW
The applicant sought review of the decision of the Tribunal by application made first on 1 April 1996. That application was amended on 11 October 1996. It specified fifty-six grounds of review, invoking ss 476(1)(d), (e), (f), and (g) of the Act. By the conclusion of submissions, those grounds had been reduced to six, of which two were under s 476(1)(g) of the Act, three under s 476(1)(e) of the Act, and one under s 476(1)(a) of the Act. Those grounds were:
1. Section 476(1)(g) of the Act: there was no evidence or other material to justify the making of decisions described as follows:
(a) "The Tribunal erred in finding that the actual third photocopy of the later pages of the military passport was not handed up by the applicant at that time for reasons which do not assist the applicant's credit . . . There was no evidence to justify the making of this decision."
(b) "The Tribunal erred in actually drawing an adverse inference against the applicant's credit by being satisfied that the actual third photocopy of the later pages of the military passport was not handed up by the applicant at that time for reasons which do not assist the applicant's credit . . . There is no evidence to justify the making of this decision."
Those grounds obviously overlap and I will deal with them together.
2. Section 476(1)(e) of the Act: the decision involved errors of law, namely
(a) ". . . in finding that unless the applicant is able to establish that there is a real chance she will be forcibly conscripted or otherwise to fight in the Chechen war then her claim fails in limine . . . The Tribunal's decision involved an error of law being an incorrect application of the law to the facts and also an incorrect interpretation of the applicable law."
(b) "The Tribunal erred in law in finding it unnecessary in these circumstances to explore whether the applicant generally holds the limited conscientious objection to the Chechen conflict which she maintains she possesses . . ."
(c) ". . . in not giving the applicant the benefit of any doubt. The Tribunal made a finding that the applicant herself is unable to advance her claims in this respect as she does not know one way or the other whether she has been called up . . . Serious difficulties stand in the way of the applicant advancing her claim in this respect. . . . The Tribunal never (sic) used all the means at its disposal to produce necessary evidence in support of the application."
3. Section 476(1)(a) of the Act: procedures required by the Act to be observed in connection with the making of the decision in accordance with s 420 of the Act were not observed. The complaint, expressed discursively in the grounds of application as amended, asserts that the Tribunal left the applicant "utterly confused and shattered", that she was pressured by the Tribunal who continuously asked her questions, but was not given the opportunity to answer those questions or given the opportunity to answer them only in a `yes' or `no' fashion, and that her attempts to explain were stopped. This conduct is alleged to have occurred on numerous occasions. Thus, she complains, she was not given the chance to provide explanations and information which she wished to provide. It is unnecessary at this point to go into the full description of those complaints, which themselves are somewhat repetitious. It is sufficient to summarise this ground of review as relating to the procedural conduct of the review but in particular a complaint that, contrary to s 420(2)(b) the Tribunal did not act according to substantial justice and the merits of the case, and that contrary to s 420(1) it did not pursue the objective of providing a mechanism of review that was fair and just. I deal with these complaints together as features of the alleged procedural unfairness.
After this matter was argued, the Full Court in Eshutu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 was decided. In my view it recognises that the procedural elements prescribed by s 420 of the Act may provide for procedures subject to review under s 476(1)(a) of the Act (per Davies J especially at 303 and 304-305, and Burchett J at 313-320). Accordingly, the legal foundation for much of the applicant's attack is partly made out. Whether the particular circumstances, or the material before the Tribunal, mean that the Tribunal fell into error is a different question.
FURTHER EVIDENCE
At the hearing, counsel for the applicant sought to tender pars 13, 14, 16 and 17 of an affidavit of the applicant sworn on 11 October 1997. There are circumstances in which evidence not before the initial decision-maker or the Tribunal may be adduced before the Court on review: Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405; Kuar v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 432; (1993) 44 FCR 380.
I have reviewed the material deposed to in those paragraphs of the affidavit. Paragraphs 13, 14 and 16 do not contain information which is either new, or which was not in general terms available to the Tribunal. The material is really no more than a re-expression of the evidence of the applicant already presented, and of contentions put by her or on her behalf. In my view, that material plainly does not fall into the category of information which may be adduced as new evidence before the Court, and I reject it.
Paragraph 17 of the affidavit is a recitation of the applicant's concerns about the way the hearing was conducted by the Tribunal. It is a slightly abridged version of the lengthy ground of review expressed in the amended application, bringing whatever added significance comes from the applicant's deposition to those matters as distinct from them being the subject of submission on her behalf. The nature of events before the Tribunal is the subject of one substantial ground of attack on this application. It was acknowledged by counsel for the applicant that the question of the fairness of the Tribunal's proceedings is ultimately to be judged objectively, so it is hard to see how the applicant's subjective assertions or beliefs may enhance the relevant picture when compared to the recorded transcript of the hearing and, as I received in evidence, the tape recordings themselves of what was a lengthy hearing. However, more from an abundance of caution than a ruling that par 17 of that affidavit does throw light upon the issue, I receive that paragraph of the affidavit.
The tape recordings of the hearing before the Tribunal comprised three double sided cassettes. It was contended that those recordings indicated the nature of the hearing before the Tribunal in a way, or with a dimension, that the transcription of the record of the hearing did not do. I have listened to those tape recordings carefully, and have done so in conjunction with reading the transcript of the hearing.
At the completion of submissions by counsel for the applicant, the applicant also sought an opportunity to adduce yet further material in evidence. That material was firstly a recording of the initial interview of the applicant by the delegate of the Minister. The recording was not available to be tendered. No application for an adjournment was sought. I was unsure, in those circumstances, how the proposed tender was to be effected, but apparently it was proposed that the material would somehow later be tendered without a further hearing. It was hoped that that information might disclose that the applicant had made the third page of the military passport available to the delegate of the Minister during the initial process. I refused that application. The evidence was not available to be presented in any event. It was not asserted that the material would show that the third page of the military passport was made available to the delegate. The applicant before the Tribunal appeared at least at one point to accept to the contrary. I note that, for the purposes of the application to call further evidence only, that par 15 of her affidavit of 11 October 1996 explicitly acknowledged that she had not done so. In addition, for reasons which appear below, I do not regard the observations as to her credit to be relevant to the ultimate determination of this application or indeed to have been directly relevant to the decision of the Tribunal. Secondly, it was sought to tender the third page of the military passport. For some reason, the Tribunal did not make or retain a copy of it. I decline that application also, simply because it is unnecessary. There is no dispute that the Tribunal's reasons accurately describe its contents; counsel for the applicant acknowledged that. Finally, the applicant sought leave to tender a further affidavit to enhance her contention that she may be vulnerable to being called up if she were to return to the Russian Federation. The proposed affidavit did not exist then, even in draft form. Counsel could not indicate its content with any specificity. It could not be asserted that it would constitute new information, or that any new information was previously unable to be adduced at an earlier point in her application for a protection visa. I saw no reason, consistent with principle, why that opportunity should be given to the applicant. It was not asserted on her behalf that the failure to accord that opportunity to her would work to her disadvantage, or possibly produce injustice. I declined that application. Since then, no application on her behalf to re-open her case to adduce any such material has been made.
In my view, the first two contentions of the applicant based on s 476(1)(g) of the Act are without merit. The Tribunal had material before it to determine that only the first two pages of the military passport of the applicant were initially presented to the delegate of the Minister. The applicant, as the transcript records, acknowledged that. No evidence was presented on this review to establish that that was not in fact the case. No assertion was made that such evidence was available (see my reasons dealing with the application to adduce further evidence). The Tribunal then was entitled to consider the significance of the non-presentation of that evidence on the applicant's credit. It did so. I do not think that its findings or observations in that regard can be attacked under s 476(1)(g): it had the primary fact of non-disclosure; it had put that matter to the applicant, including the contents of that third page; it had access to the third page; it had the advantage of seeing and hearing the applicant's response to its questions on the topic.
There is an independent reason why I reject this ground of review. That is because the observations of the Tribunal about the applicant's credit did not play a role in its ultimate conclusion. It found as a fact that the applicant was not at risk of being called up to serve in the Chechnyan conflict. It had regard to a range of material, including the objective facts which the military passport established. It did not positively accept, or reject, the applicant's evidence of her fear of being called up. It did not need to do so. It appears to have regard to her reasons for her fear of being called up, but to the extent they carried any probative weight, the Tribunal has made a different finding based on the evidence before it. That finding is not itself subject to challenge on this review. The credit of the applicant was not, so far as I can see, a matter which the Tribunal had regard to in making that finding. In my view, the decision of the Tribunal was reached independently of its view as to the applicant's credit. Its observations on that topic are entirely incidental to its conclusion on the critical matter. Accordingly, as such observations played no relevant role in the decision, any error in making them is irrelevant. As I have said, I do not think any reviewable error is made out on that score in any event.
I can also deal with the three grounds of review under s 476(1)(e) together.
The grounds of review quoted above do not really identify the alleged errors of law. They simply recite certain findings or steps in the Tribunal's reasons, and assert errors of law as a consequence. The submissions did not really enlighten that matter. The applicant claims that upon her return to the Russian Federation there is a risk that she may be called up to serve in the Chechnyan conflict, and that as a result her conscientious objection to that conflict may lead to her persecution for a Convention reason. If there is no risk of her being called up, she will not be confronted by her conscientious objection. If she will not have to invoke her conscientious objection, there is no real chance of her being persecuted for it. The Tribunal found no risk of her being called up. That is a finding of fact. It was not expressly challenged in the grounds of review which were not abandoned. I see no error of law in the Tribunal making that finding of fact, nor in concluding as a result that there was no real chance of the applicant being persecuted for a Convention reason due to her asserted conscientious objection.
Nor am I persuaded that the Tribunal erred in law in not giving the applicant "the benefit of any doubt". It had regard to the evidence at large. It noted that the applicant could not give direct evidence as to whether she has been called up; that is but an observation that her evidence on that particular aspect is neutral. It made a firm finding on the evidence in unequivocal terms. It is not the appropriate function for the Court to over zealously scrutinise the reasons of the Tribunal to try to discern some technical inadequacy of expression, when overall its reasons are clear: Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; (1996) 185 CLR 259. There is no indication in its reasons that it misdirected itself in determining whether the applicant had a well founded fear of persecution, or misconceived that direction in addressing the evidence: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The simple fact is that, on the evidence and other material before it, it reached a firm conclusion of fact adverse to the applicant.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 the High Court commented upon the role of the Tribunal in addressing evidence of past events, and in making findings of fact based upon such evidence. In the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, the Court said (at 578):
"In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do. It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
In my view, the Tribunal's approach to this matter was entirely consistent with that described in the above passage.
I note the suggestion that the Tribunal erred in law by not further investigating the applicant's claim. There may be circumstances where the failure of the Tribunal to carry out an inquiry may constitute a reviewable error: Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 290-291, but they will be rare. In the present matter, nothing was put by counsel for the applicant to suggest that any further particular inquiry by the Tribunal was necessary, or was likely to produce critical relevant information, or was requested. It is fair to adopt the summary of a similar general contention put in Cruz v Minister for Immigration and Ethnic Affairs (Full Court, 23 May 1997, unreported) where Wilcox J said:
"Essentially, as it seems to me, [the] submission amounts to this: in every case in which an applicant for refugee status puts allegations to the Tribunal regarding events that have occurred in the country from which he or she has fled, the Tribunal has an obligation to carry out an investigation as to the whole of those circumstances. That task would be extremely onerous. It seems to me that acceptance of the proposition would cause the refugee assessment system to collapse."
Sackville and Emmett JJ agreed. In the particular circumstances under consideration, in my view, no error of law in the course taken by the Tribunal is disclosed in making its determination on the material then available to it.
I turn to the submission based on s 476(1)(a) of the Act. I have referred above to Eshutu. It may be accepted that, for the purposes of s 476(1)(a) of the Act, the obligations imposed upon the Tribunal under s 420 may in some respects amount to procedures required by the Act to be observed in connection with the making of the decision. There have been a number of decisions of the Court in which the issue has been whether the Tribunal hearing has been conducted in a proper way: see eg. Jovicic v Minister for Immigration and Ethnic Affairs, (Goldberg J, 18 March 1997, unreported); Lakhbir Singh v Minister for Immigration and Multicultural Affairs (Mansfield J, 4 April 1997, unreported); Jae Bok Lee v Minister for Immigration and Ethnic Affairs (Sundberg J, 2 May 1997, unreported); Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (Goldberg J, 6 May 1997, unreported); Yan-Qiu Wang v Minister for Immigration and Ethnic Affairs (Finn J, 30 May 1997, unreported); Joji Kimura v Minister for Immigration and Multicultural Affairs (Tamberlin J, 17 September 1997, unreported); Khan v Minister for Immigration and Multicultural Affairs (Lockhart J, 4 August 1997, unreported, and in the Full Court, 27 November 1997, unreported).
There are also procedural obligations imposed on the Tribunal in its decision making processes under s 425 and s 426 of the Act. There may be occasions when the Tribunal should exercise one or more of its powers under s 427 of the Act, perhaps simply to properly perform its procedural obligations under ss 420, 425 and 426 of the Act.
This is not the occasion to explore the limits of the Tribunal's obligations. The complaint is that the hearing was conducted unfairly and oppressively, in particular during the applicant's evidence, by imposing restrictions on the way questions could be answered and by preventing the applicant from giving explanations and further evidence on a number of topics. I assume, for present purposes, that the applicant's entitlement to give evidence: s 425(1) of the Act, includes the entitlement to give such evidence as the applicant desires provided of course it is both relevant and probative in a sensible way, although not necessarily in accordance with the formal rules of evidence: s 420(2)(a). The foundation for the attack must be that the applicant was not given that opportunity.
As noted above, I have considered the Tribunal's reasons, the transcript, the tape recording of the hearing, and par 17 of the affidavit of the applicant sworn on 11 October 1996. I have paid particular regard to those many parts of the hearing which were identified by counsel for the applicant as making out this claim, including focussing on the particular complaints of being forced to answer questions only in a `yes' or `no' manner, being precluded from offering explanations of material or of answers, being confused by long and complex questions, being confused as to the topic to be addressed, being unfairly pressured, and being unfairly interrupted during answers.
It is unnecessary to fully consider the scope of operation of ss 420, 425 and 426 in this context because, having taken those steps, I do not find the factual foundation for them to have been made out. In fairness to the Tribunal, I should go further and express my view that the Tribunal was assiduous in giving the applicant the opportunity of responding to matters possibly adverse to her claims. It asked her to comment on information that no reservists were being called up either in a combat role or in a supporting role in the conflict in Chechnya. It asked her to comment on the question of whether the conflict in Chechnya was a declared war, for which reservists might be called up. It asked her to explain fully her concerns if she were to return to Krasnodar, including by reason of her asserted anti-communist sentiments and songs, and to comment on whether in fact Krasnodar or the Russians in that region were in fact at risk. In particular, she was asked to explain her concerns in the light of the absence of any past history of troubles experienced by her; she did explain of inquiries about her during her absence in Australia, apparently made by the local militia. It explored her views on the Chechnyan conflict, and what information was available about the consequences to those who had refused to fight in it.
The Tribunal carefully addressed the applicant's evidence. It is recited in some detail in its reasons. The applicant was represented at the hearing by a migration agent from the Refugee Advice and Casework Service. The applicant gave evidence, sometimes in English and sometimes through an interpreter. In that process, in my view, the Tribunal was at pains to identify to the applicant the particular matter or matters upon which it was desirable for her to address herself. It gave her the opportunity to explain to the Tribunal those matters which were troubling the Tribunal. It is true that on some occasions her answers were cut off. The material indicates that the reasons were simply that the Tribunal wished clarification of a point then being made by the applicant. It was not unfair. Upon that clarification, once it was given, the Tribunal then resumed the process of inviting the applicant to take up the explanation or reference to material which she was in the course of providing before the interruption. The interruptions were not destructive of her right to adduce evidence, but were apparently in an endeavour to ensure that the points she was making were properly understood, and that she properly focussed on issues relevant to the Tribunal's determination. On several occasions, the Tribunal identified a particular matter or matters concerning it and invited her comments or explanations, and again those explanations were given. Sometimes lengthy and detailed answers were given. Sometimes the applicant was directed back to the point under consideration. That was not done improperly, but in an apparent attempt to ensure she understood the point being explored and its potential significance. In my view, judged objectively, the Tribunal did not fail to accord to the applicant a hearing which was fair and just or the opportunity to have her proceedings determined in accordance with the substantial merits and the justice of the case. It did not conduct the hearing oppressively. It did not conduct the hearing unfairly.
Accordingly, I do not find the applicant's complaints are made out. It follows that this ground of review must fail.
CONCLUSION
In accordance with the above reasons, I dismiss the application for review. I order that the applicant pay to the respondent costs of the application to be taxed.
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I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Mansfield. |
Associate:
Dated:
|
Counsel for the Applicant: | Mr M Clisby |
| Solicitors for the Applicant: | Paul Kirk Roberts & Co |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 25 June 1997 |
| Date of Judgment: | 6 March 1998 |
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