NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 97 (20 February 2003)

Last Updated: 3 April 2003

FEDERAL COURT OF AUSTRALIA

NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 97

NARE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 826 of 2002

MOORE J

SYDNEY

20 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 826 OF 2002

BETWEEN:	NARE OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	20 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 826 OF 2002

BETWEEN:	NARE OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	20 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 June 2002 handed down 17 July 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). The applicant in this matter was one applicant before the Tribunal. Although her sons were also applicants before the Tribunal, they are not parties to this proceeding.

2 The applicant, who is a citizen of Lithuania, arrived in Australia with one son on 24 September 2000. The other son had previously arrived on a student visa on 8 May 1998. On 3 November 2000, all three family members lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for protection visas under the Migration Act 1958 (Cth) ("the Act"). On 20 August 2001 the delegate refused to grant the protection visas, and on 31 August 2001 the visa applicants applied to the Tribunal for review of that decision.

The Tribunal's reasons

3 The Tribunal's reasons commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". In a section of its reasons entitled "Claims and Evidence", the Tribunal summarised the claims made by the three family members. It also had before it the departmental file relating to the applicant and her sons. The three applicants gave oral evidence before the Tribunal on 23 November 2001 and 7 March 2002, and at the conclusion of the hearing they submitted additional documentation to the Tribunal. The following is a summary of the applicant's account of her circumstances drawn from the reasons for decision of the Tribunal. It may repeat matters disputed by the applicant but it is only intended to provide a convenient overview of the case generally.

4 The applicant was born in Yessentuki, in the Stavropol province of the Soviet Union (as it was at the time). She is "Ossetian/Armenian Jewish", and her religion is "Orthodox". She studied in Yessentuki, and from 1982 was working in Vilnius, in Lithuania. From 1994 she lived at "various addresses" in Russia.

5 The applicant married, and in 1979 she gave birth to her first son. After moving around a great deal, the family eventually settled in Vilnius in 1981. The applicant and her husband divorced in 1988. The applicant applied for Lithuanian citizenship in 1991, after Lithuania became an independent republic. The applicant began to travel back and forth to Russia during 1991 and 1992. In 1993 her Lithuanian citizenship was finalised, and she was given a new passport. In Lithuania, both the applicant and her son were vilified and physically assaulted because they were Russian, and because the son attended a school run by Russian Jews. Due to these circumstances in Lithuania, the applicant and her son moved to Moscow.

6 In Moscow, the applicant formed a relationship with a man who was a Georgian Jew. This man had a son. The applicant, her partner and their children all suffered anti-Caucasian and anti-Jewish harassment, consisting of physical abuse and vilification. In June 1996, while the applicant and the children were in Yessentuki, the applicant's partner was murdered because of his political and social activities. He was an anti-war activist and a supporter of a peaceful resolution to the conflicts in the Caucasus. He supported various anti-war organisations, sought information about the war in the Caucasus, gave donations for printing anti-war pamphlets and provided food parcels for refugees. Before his murder, he had received a number of death threats and suffered at least two assaults.

7 The police were very helpful to the applicant and the children following the murder, accompanying her to the Guardianship Office to commence adoption proceedings, moving her to another apartment, and generally offering support. The applicant was active in pursuing the people she believed had killed her partner, trying for two years to launch criminal proceedings against them. As a result of these attempts she and her family received pressure, threats and persecution from the Georgian Consulate and high-placed Russian bureaucrats. The applicant was assaulted on at least one occasion. She claims the police told her after the murder that her partner's death was related to politics.

8 A man was arrested in relation to the murder in 1996, and the case came to court about a year after the murder. The accused was convicted, but the applicant is not convinced that he was involved, and the Russian authorities were not interested in a "proper investigation" because of the political circumstances. The applicant continued to press for further investigations into the murder, enlisting the help of a lawyer named Mr Nersisian.

9 Following the murder of her partner, the applicant chose to formally adopt his son. To do this, she had to remain in Moscow following the murder. This adoption process meant that the applicant had to make some trips to Lithuania, where she and her other son were citizens. During 1997, the applicant's son was abducted and doused with petrol. The assailants told him to stop his mother from going to the Prosecutors office, and to forget the death of the applicant's partner. To prevent anything further from happening to her son, the applicant sent him to Australia to study an English language course. His student visa was granted on 21 April 1998 and he arrived here on 6 May 1998.

10 The applicant received a number of threats relating to her attempts to adopt her late partner's son. On 26 April 2000 some unidentified people rang and threatened her not to attend the adoption case in Vilnius. The applicant also faced obstacles from Georgian officials. On the evening of the adoption case, Mr Nersisian telephoned the applicant and told her to return to Moscow immediately, but not by train or air.

11 Throughout the adoption process, the applicant and her adopted son continued to live primarily in Moscow, however they had to make frequent visits to Lithuania. They were still experiencing high levels of discrimination and abuse, because they were "mountain Jews". The applicant was beaten by the militia in 1999 while she was selling items at a stall, and in early 2000 she was attacked by Neo-Nazis in the Metro.

12 Despite these difficulties, the applicant had the support of many parties, including the police, the prosecutor's officers, the Guardianship Board, and the lawyer Mr Nersisian. By April 2000 the adoption was complete and all their papers were in order. The applicant and her adopted son left to join her other son in Australia. The applicant is afraid to return to both Russia and Lithuania, as she fears persecution from the general community, as well as the militia and the police, for her and her sons due to their race, religion and ethnicity.

13 In a section in its reasons titled "Findings and Reasons for Decision", the Tribunal commenced by noting that all three applicants were citizens of Lithuania (not Russia), and their claims must be assessed by reference to this country. The Tribunal noted that the applicant's initial claims regarding persecution related primarily to issues of race and religion. It also noted these claims were abandoned by the applicant at the hearing, and were, it said, not supported by any evidence. The Tribunal formally rejected those claims. I should record, parenthetically, that no complaint is made by the applicant in these proceedings of a failure of the Tribunal to consider whether she had a well founded fear of persecution on these grounds of race and religion. The claims pursued by the applicant at the hearing before the Tribunal were founded on events associated with the murder of her partner, and her experiences thereafter arising from both the investigation of the matter and the adoption of her late partner's son.

14 While the Tribunal did accept that the applicant's partner had been murdered, it indicated that it was not in a position to assess the "credibility" of a murder trial that had occurred a number of years ago in Moscow. After examining various documents submitted by the applicant (including trial transcripts, letters and newspaper articles), the Tribunal said:

"On the evidence before it, the Tribunal is not satisfied that [the applicant's partner] was killed because of any anti-war (and hence anti-government) sentiments or activities. The Tribunal is satisfied that [the] death involved criminal elements and was therefore dealt with correctly by the investigation officers and the courts as a criminal case. The Tribunal acknowledges that cases that are criminal may also have political overtones. However, in this case, there is no real support for the applicant's assertion of a politically motivated death, and the remaining evidence points very strongly to an absence of political motives. Hence the Tribunal is satisfied that there is no Convention nexus ("for reason of political opinion") established by the case surrounding the death of the applicant's de facto husband."

15 The Tribunal then turned to consider the applicant's claims in relation to the adoption of her late partner's son. The Tribunal noted there were a number of factors motivating the applicant to undertake this process, including the desire to represent the son's interests in proceedings stemming from the murder, and to strengthen the applicant's relationship with the son. A great deal of evidence was provided to the Tribunal, both oral and documentary, of the difficulties faced by the applicant throughout the adoption process, including assaults, threats and harassment. However, the Tribunal found much of this evidence to be vague and unspecific, and noted that it was difficult to speculate who may have had reason to make threats in relation to the adoption. In addition, the Tribunal said:

"The Tribunal rejects the claim that the state - in this case, the Russian Federation - was complicit in thwarting her adoption of [her partner's son] in order to prevent her reopening [her partner's] case and embarrassing the state politically. On the material before it, the Tribunal sees no evidence that the state was deliberately obstructive in foiling the adoption process in Russia. Indeed, the applicant has stated on a number of occasions, including in writing, that "we were receiving support from hospital doctors, officers of the Criminal Police, local policemen, North Ossetia Prosecutor's Office, Moscow Inter-Regional Prosecutor's Office, District Guardianship Boars and many others...". In short, the applicant generally appeared to have received support from the state apparatus rather than hindrance, although this does not mean that some particular offices may not have been inefficient, bureaucratic, or even obstructionist."

16 The Tribunal was not satisfied about the veracity of the applicant's claims that she and her family's lives were in danger, noting that they had remained in Moscow for her adopted son to conclude the school year, and then stayed a further two months before departing for Australia. The Tribunal found that even if the applicant and her family had suffered threats as a result of the adoption process, these were linked only to that endeavour and had ceased once the adoption was complete. Claims made by the applicant regarding the period following the adoption process were found by the Tribunal to be vague and inconclusive, and it concluded the discussion on the adoption process by noting that it was not satisfied that the applicant or her sons had suffered harm amounting to persecution for Convention reasons during the process.

17 The applicant submitted further documents and information regarding her lawyer in Russia, Mr Nersisian. The Tribunal did not accept much of this evidence. It said:

"The Tribunal is not satisfied with the veracity of Mr Nersisian's statements that [the applicant's] life, and that of her sons, is in danger in both Russia and Lithuania and that it is somehow connected with the court case following [her partner's] death. In studying the evidence by and about Mr Nersisian, the Tribunal is satisfied that he has undertaken actions and written statements specifically designed to assist the applicant in her refugee claim. He has specifically attempted to address the question as to why the applicant would be in danger in her country of citizenship (Lithuania) in consequence of incidents occurring in Russia."

18 The Tribunal then turned to consider the situation in Lithuania. While it did accept that the applicant had experienced racial harassment in the early 1990s, and that she had been raped by two Lithuanian men in 1991, the Tribunal found that these incidents took place during the period surrounding Lithuania's succession from the Soviet Union, and that nationalism and anti-Soviet sentiment were both widespread at that time.

19 The Tribunal continued by examining the situation in Lithuania at present, noting that approximately nine per cent of the Lithuanian population was ethnic Russian. In answer to claims by the applicant that the borders of Russian and Lithuania were porous and anyone who would be a threat in Russia could also be a threat in Lithuania, the Tribunal noted the recent improvement in border protection measures taken by the Lithuanian government. It added that there was no evidence that the Lithuanian authorities would not protect the applicant from any threats posed by individuals from Russia, citing independent country information on human rights.

20 The Tribunal concluded by finding that, based on the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations, and does not satisfy s 36(2) of the Act.

Issues in the application

21 The application for review in this Court was filed on 9 August 2002. The application seeks to have the Tribunal's decision set aside, and the matter remitted to the Tribunal for determination according to law. The grounds of the application are set out in an accompanying affidavit. It reads:

"1. That the Tribunal's approach was subjective towards the current situation with Human Rights in Lithuania.

Not all available country information on Lithuania was used. Some important information was deliberately overlooked by the Tribunal.

The decision maker was not acting in good faith."

22 The respondent's written submissions contend that the Tribunal made no error of law, and that the application for review does not particularise any error of law. It was also argued by the respondent that in any event, the decision of the Tribunal is subject to s 474 of the Act.

23 At the hearing, the applicant (who was not legally represented) began, through an interpreter, to engage in a detailed analysis of the factual matrix raised by her application for a protection visa with a view to demonstrating that the Tribunal had made a number of errors. In the circumstances, I considered that the appropriate course was to allow the applicant to file written submissions dealing with those matters and that might reveal how they were relevant to an application for judicial review. In due course, submissions were filed on 6 December 2002 in accordance with directions given at the hearing.

24 On 19 December 2002, the applicant wrote to the Court seeking to file further additional supplementary material. This application was opposed by the Minister. The applicant was given leave to file those further submissions, though I accept it is necessary for there to be some control over the filing of written submissions: see Jackson, in the matter of Conway v Conway [2000] FCA 1530. However it was made clear to the applicant that any documents she sought to rely on that had not been before the Tribunal would need to be scrutinised to determine whether they were admissible in proceedings of this type. Counsel for the Minister quite properly submitted that inadmissible documents should be rejected. By a letter dated 23 January 2003, the applicant sought to make further additional submissions and enclosed further documents.

25 It is convenient first to say something about the various documents appended to the submissions of 6 December 2002, enclosed with the letter of 12 December 2002 and with the letter of 23 January 2003. In the main, as far as I can ascertain, they constitute documents which had not been before the Tribunal and are advanced to demonstrate that findings of fact made by the Tribunal should not have been made. However such documents are not admissible for that purpose and must be rejected.

26 In her submissions of 6 December 2002 the applicant adopted a particular format. Under various headings, the applicant set out things the Tribunal had said, decided or done and then set out what was described as a "correction". The correction constituted a rebuttal of what the Tribunal had said or decided or a criticism of what it had done. The corrections traversed many matters and in much detail. However they were, in the main, challenges to findings of fact (including inferences) though they also included complaints about the procedure adopted by the Tribunal. In this latter category was a complaint about the apparent use by the Tribunal of a submission that had been made on behalf of the applicant by a migration agent who the applicant said had been acting fraudulently. Also in this latter category was a complaint about the failure of the Tribunal to take oral evidence (by phone) from the lawyer who had acted for the applicant in Russia, Mr Nersisian.

27 This is an application brought under s 39B of the Judiciary Act 1903 (Cth) but one in respect of which s 474 of the Act applies. The effect of that section has recently been considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. It is unnecessary, for the purposes of deciding this application, to discuss at length the reasoning of the High Court. Suffice it to say that s 474 does not protect a "decision" attended by jurisdictional error. It would appear to follow that it is necessary to have regard to the reasons of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2000) 180 ALR 1 explaining what is jurisdictional error (see particularly [81]-[82]).

28 But the applicant's challenge to the Tribunal's decision is, save for one matter I discuss in the following paragraph, a challenge to specific findings of fact made by the Tribunal or a specific complaint about the fact-finding process. However the findings of fact made by the Tribunal were made in circumstances where it is apparent from the Tribunal's reasons that it has sought, bona fide, to evaluate in a detailed and comprehensive way the material before it, make judgments about the veracity of the applicant's evidence and other evidence given and assess the import of a range of documents the applicant relied on in support of her claims. No jurisdictional error is apparent in the way the Tribunal went about its task.

29 The applicant makes specific complaints about the approach of the Tribunal to her first submission and about not taking oral evidence by telephone from the lawyer in Russia. They conceivably raise questions concerning procedural fairness which, having regard to the leading judgment in Plaintiff S157/2002 v Commonwealth of Australia, may constitute jurisdictional error. However the approach taken by the Tribunal to the first submission was unexceptionable. As to the Russian lawyer, the Tribunal was not obliged to take evidence by phone from him in Russia, and its explanation for not doing so was reasonable. This is not a situation of the type considered in W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211, where the witness's evidence may have proved critical to the evaluation of the credibility of the applicant and the witness was available to be called (being in detention in Australia).

30 No error has been established which would warrant relief being granted by this Court. Accordingly the application should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 20 February 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 November 2002
Date of Final Submissions	23 January 2003
Date of Judgment:	20 February 2003